Citation Nr: A25035194 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 191017-40473 DATE: April 16, 2025 ORDER Entitlement to a rating in excess of 20 percent prior to August 14, 2019, for gout is denied. Entitlement to an effective date prior to August 14, 2019, for the grant of a 10 percent rating for gastroesophageal reflux disease (GERD) with gastric ulcers is denied. FINDINGS OF FACT 1. The Veteran's gout during the period prior to August 14, 2019, was characterized by non-incapacitating episodes occurring more than 4 times per year and involving pain, swelling, and difficulty wearing shoes. 2. The evidence demonstrates that entitlement to a 10 percent rating for GERD with gastric ulcers arose August 14, 2019. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent prior to August 14, 2019, for gout have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5002, 5017. 2. The criteria for entitlement to an effective date prior to August 14, 2019, for the grant of a 10 percent rating for GERD with gastric ulcers have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to May 1972 and from January 1980 to December 1981. The issue of entitlement to a rating in excess of 20 percent for gout prior to August 14, 2019, stems from a January 2017 rating decision. The issue of entitlement to an earlier effective date for the grant of a 10 percent rating for GERD with gastric ulcers stems from an initial October 2019 rating decision. The modernized review system, also known as the Appeals Modernization Act (AMA), applies to this matter. See 38 C.F.R. § 3.2400 (a)(1). In the October 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. In August 2022, the Veteran testified before a Veterans Law Judge. A transcript is of record. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Board cannot consider (1) evidence submitted during the period after the AOJ issued the decision on appeal and before the VA Form 10182 was received, or (2) evidence submitted more than 90 days after the VA Form 10182 was received. 38 C.F.R. § 20.303. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the claims for earlier effective dates. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims for earlier effective dates, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board previously dismissed entitlement to a rating in excess of 20 percent prior to August 14, 2019, for gout and denied an earlier effective date for the grant of a 10 percent rating for GERD in an August 2023 decision. The Veteran appealed the August 2023 Board decision to the United States Court of Appeals for Veterans Claims (the Court). In a December 2024 Joint Motion for Remand (JMR), the Court vacated and remanded the August 2023 Board decision for readjudication consistent with the JMR. The Board acknowledges that the Veteran's VA Form 10182 lists the issue as entitlement to an earlier effective date for the grant of a 60 percent rating for gout. However, as discussed in more detail below, the issue on appeal is actually one for entitlement to an increased rating for gout prior to August 14, 2019. Thus, the Board has recharacterized the issue. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800 (c). 1. Entitlement to a rating in excess of 20 percent prior to August 14, 2019, for gout is denied. The Veteran seeks a rating in excess of 20 percent prior to August 14, 2019, for his service connected gout. In an August 2023 decision, the Board dismissed this matter due to a procedural defect. In the December 2024 JMR, the Court found the Board did not provide an adequate statement of reasons or bases when it failed to consider whether it had waived the claims processing rule when it continued to develop the Veteran's claim under the AMA. In this case, in December 2018, the Board remanded the appeal for a disability rating in excess of 20 percent for gout in the 'Legacy' appeal system. Following further development, the AOJ issued an October 2019 'Legacy' rating decision, which granted a 60 percent rating, effective August 14, 2019. The AOJ also issued a November 2019 supplemental statement of the case (SSOC) discussing the assigment of a 60 percent rating from August 14, 2019. Following the November 2019 SSOC, the appeal was returned to the Board in the 'Legacy' appeals system, for further appellate review. In October 2019, prior to the issuance of the SSOC, the Veteran filed a VA Form 10182, Notice of Disagreement, in the AMA in response to the October 2019 rating decision. He sought to appeal the assigned effective date of August 14, 2019, for the 60 percent rating. In an interim January 2020 'Legacy' rating decision, the AOJ found clear and unmistakable error and granted a 100 percent rating effective from August 14, 2019. In a January 2020 'Legacy' Board decision, the Board denied a rating in excess of 20 percent for gout prior to August 14, 2019. The January 2020 Board decision is final. Board decisions are final when issued. 38 U.S.C. § 7104. The current appeal, which is pending in the modernized review system, is properly characterized as entitlement to an increased rating for gout prior to August 14, 2019, which is the same matter the Board previously adjudicated in the final January 2020 decision. The Veteran's October 2019 VA Form 10182 was invalid on the issue of entitlement to an increased rating for gout, because it was not in response to an initial AOJ decision on or after the effective date of the modernized review system. See 38 C.F.R. § 3.2400 (a). It also was not an elected review of a legacy claim under the modernized review system as provided for in 38 C.F.R. § 3.2400 (c) (i.e., a RAMP election or an election after receiving an SOC or SSOC). Thus, this AMA appeal on the issue of entitlement to an increased rating for gout prior to August 14, 2019, was improperly docketed in AMA. However, in November 2019, the Board sent the Veteran a letter notifying the Veteran that it had docketed his appeal under the AMA. Additionally, a hearing before a VLJ took place in August 2022. During the pendency of the appeal, the Court of Appeals for Veterans Claims (Court) decided Hall v. McDonough, 34 Vet. App. 329 (2021), holding that VA regulations requiring a special appeal form do not limit the Board's jurisdiction over the appeal. Rather, the Court described those regulations as "akin to claims-processing rules" that govern the orderly processing of cases but do not implicate jurisdiction. Hall, 34 Vet. App. at 333. Therefore, the Court held that VA regulations requiring a specific appeal form should be treated as "less stringent" claims-processing rules that may be forfeited or waived. Although the appeal in this case was docketed as an automatic administrative action, the Board finds that it did "engage in substantive and procedural development" of the appeal by taking the Veteran's testimony at a hearing. See, e.g., Percy v. Shinseki, 23 Vet. App. 37, 46-47 (2009). Therefore, the Board finds waiver of the claims processing rules to be appropriate here. Accordingly, the Board will consider the Veteran's claim on the merits. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. §5107; 39 C.F.R. §§3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the rating schedule for evaluating musculoskeletal disabilities was amended effective February 7, 2021, the Board's review is limited to evidence of record at the time of the AOJ's decision and evidence submitted at the hearing or within 90 days of the hearing. Because the Veteran did not submit any additional evidence at or within 90 days of the hearing, there is no evidence to consider under the new criteria. The Veteran's service connected gout is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5017. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed and the appeal period under review in this case is prior to the revisions. Prior to February 7, 2021, the Note to DCs 5013 through 5024 indicated that the diseases under DC 5013 through 5024 will be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout which will be rated under DC 5002. Prior to February 7, 2021, under DC 5002, a 20 percent rating is warranted for one or two exacerbations a year in a well-established diagnosis. A 40 percent rating is warranted for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year. A 60 percent rating is warranted for symptoms less than the criteria for 100 percent but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods. A 100 percent rating is warranted for gout with constitutional manifestations associated with active joint involvement, totally incapacitating. Although DC 5002 did not define an "incapacitating exacerbation," the term was defined elsewhere in the rating schedule, both within the same chapter regarding evaluating disability of the musculoskeletal system, specifically intervertebral disc syndrome, and in the digestive system portion of the rating schedule. There, an incapacitating episode was defined as a period of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, DC 5243, Note (1); 38 C.F.R. § 4.114, DCs 7345 and 7354, Note (2) (prior to Feb.7, 2021). Turning to the evidence of record, a March 2016 VA examination diagnosed gout, noting the Veteran's reports that it required medication and had been "about the same" since diagnosis in 1981. The examiner found that the Veteran had not lost weight due to the disability and did not have anemia. The examiner found pain in the feet and toes and noted recurrent episodes of gout in the left first toe, which was fused. The examiner did not find any deformities and found that no other systems were involved. The examiner found that the Veteran had 4 or more non-incapacitating exacerbations per year involving severe pain and swelling of the foot. The examiner found that the Veteran did not have incapacitating exacerbations, and that gout was not productive of definite impairment of health. The examiner found that the Veteran did not use assistive devices such as a cane. November 2016 VA treatment records noted the Veteran's reports of swelling and difficulty walking due to pain. The provider noted that the Veteran could not put on a shoe due to swelling. January 2017 records noted severe pain in the left big toe with activity, not controlled by gout medication. The provider noted the Veteran's reports of pain when he first stepped on his foot, lasting for about 30 minutes. On examination, the provider found that the findings were not consistent with an acute flare as there was no joint swelling, heat, or erythema. May 2017 VA treatment records noted a gout flare up lasting two days with pain and swelling. The Veteran reported mild redness, tenderness to touch, and pain '6/10' that is worse with weight bearing. September 2017 VA treatment records noted a gout flare up lasting for two weeks with pain and swelling in both feet. The Veteran reported problems walking but denied being unable to walk. October 2017 podiatry records noted the Veteran's reports of severe pain and swelling of the left big toe. However, on examination the provider found that the findings were not consistent with an acute flare as there was no joint swelling, heat, or erythema. December 2017 records noted that the Veteran reported a gout flare up with pain despite taking medication. May 2018 VA treatment records noted three days of recurrent gout with redness, swelling, and constant pain. The Veteran was concerned that it was not going away. June 2018 records show treatment for gout, noting sporadic left big toe pain, new onset paronychia, and swelling improved with soaks. September 2018 records noted sporadic pain in left big toe with two to three gout attacks per year. During his December 2018 Board hearing, the Veteran reported that his gout had worsened, stating that he was having more than three to four flare ups per year. He reported that he used a cane to keep weight off his foot and that his pain had increased since the March 2016 VA examination. He reported pain feeling like sticking pins in his feet and swelling and that he could not wear shoes during a flare up and that he wore flip-flops. An August 2019 VA examination found gout with pain in both feet that recurs every one to two months. The examiner found continuous medication, no weight loss, and no anemia. The examiner found pain in the bilateral feet with limitation of motion in the left foot as well as joint deformity consisting of stiffness in the left big toe. The examiner found four or more incapacitating exacerbations per year that last two to four weeks. The examiner noted that the Veteran could not bear weight on the left foot during those periods. The examiner also found severe incapacitating exacerbations four or more times per year, manifested by symptoms combinations with definite impairment of health as well as constitutional manifestations associated with active joint involvement that were totally incapacitating. The examiner noted that the Veteran used a cane and could not stand or walk during flares. During his August 2022 Board hearing, the Veteran reported having surgery in 2000 due to buildup on his toe. He also reported experiencing swelling and numbness of the feet. He indicated that he has flare-ups of gout one to three times a week. After a review of the evidentiary record, the Board finds that the evidence does not show that the Veteran had three or more incapacitating exacerbations per year or that his symptom combinations were productive of definite impairment of health, objectively supported by examination findings, prior to August 14, 2019. At the outset, the Board finds that the VA examinations are adequate for appellate review. The Board finds the examinations are entitled to significant probative weight because there is no evidence that the examiners were not competent or credible and the reports are based on the Veteran's statements, in-person examinations, and the examiners' observations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008). The Board also notes that the Veteran is competent to report observable symptoms such as pain and swelling and accords his lay reports of symptoms significant probative weight. Moreover, the Board finds his reports to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The record shows that the Veteran's gout was generally characterized by exacerbations occurring four or more times per year, consistent with his December 2018 and August 2022 testimony. The March 2016 VA examiner found four or more non-incapacitating exacerbations per year, and the VA treatment records document five exacerbations involving pain and swelling in 2017 and three exacerbations in 2018. However, to warrant an increased rating, the evidence must show either a symptom combination productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations. The Board finds that the competent evidence from the period on appeal does not show that the Veteran had incapacitating episodes of gout. As noted above, the March 2016 VA examiner noted the Veteran's reports of pain and swelling but found that the exacerbations were non-incapacitating. In contrast to the August 2019 examiner, who found pain in the bilateral feet, the March 2016 examiner found pain limited to the left great toe, which the Board notes is consistent with VA treatment records from 2016, 2017 and 2018, except for one record in September 2017 that noted pain in both feet. Prior to the August 2019 examination finding that the Veteran was unable to stand or walk during flares, there is no indication in the record that the Veteran was unable to walk during exacerbations. The March 2016 examiner noted pain with walking and standing but did not find that the Veteran was unable to walk or stand. January 2017 records indicate that the Veteran was unable to stand on his foot when he first woke up, but that this lasted for only 30 minutes. Similarly, the September 2017 VA treatment record indicates that the Veteran reported pain and problems walking but denied that he was unable to walk. VA treatment records from 2018 also do not indicate that the Veteran was unable to walk or was otherwise incapacitated during an exacerbation, with the June 2018 and September 2018 records noting only sporadic pain in the left great toe and two to three attacks per year. At the December 2018 hearing the Veteran reported increased pain and frequency of exacerbations and having to wear flip-flops instead of regular shoes but did not report that he was unable to walk. There is simply no basis in the record upon which the Board can conclude that the Veteran was unable to walk or stand during exacerbations prior to August 2019. Therefore, the Board finds that prior to August 2019 the Veteran's exacerbations involved pain generally limited to the left great toe and foot and that he was not unable to stand or walk or otherwise incapacitated. The evidence prior to August 2019 also does not indicate that the Veteran's gout involved symptoms productive of definite impairment of health objectively supported by examination findings. The March 2016 examiner found no weight loss or anemia and found that the Veteran's symptoms did not produce definitive impairment of health. The August 2019 examiner also found no weight loss or anemia. There is simply no basis upon which the Board can conclude that the Veteran's gout caused definite impairment of health supported by examination findings during the period. Therefore, a rating above 20 percent for the period is not warranted. The Board has considered whether a separate or higher rating is warranted under a different DC. Generally, because gout is specifically listed in the rating schedule, it may not be rated by analogy under a different DC. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Regardless, even if the Board were to apply another DC based on analogy, the Board finds a higher rating is not warranted. For instance, given the absence of a DC governing ratings of limitation of motion of the feet, the Board has considered a rating under DC 5284. The Board concludes that it may not characterize the impact of the Veteran's gout on his great toes and/or foot as severe even without considering the effects of medication such that an increased rating of 30 percent is not warranted pursuant to DC 5284. See 38 C.F.R. § 4.71a. The Board has also considered applying other DCs; however, none of the other DCs considered appear to be more appropriate or more favorable to the Veteran. For instance, DCs 5171 and 5173 are not appropriate as these DCs contemplate amputation of the great toe. During the period on appeal, the record indicates that neither of the Veteran's great toes were amputated, and the evidence does not demonstrate symptoms more nearly approximating amputation. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and a rating in excess of 20 percent prior to August 14, 2019, for gout is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. For these reasons, the claim is denied. 2. Entitlement to an effective date prior to August 14, 2019, for the grant of a 10 percent rating for GERD with gastric ulcers is denied. The Veteran seeks an effective date prior to August 14, 2019, for the grant of a 10 percent rating for GERD with gastric ulcers. Generally, the effective date for compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Similarly, the effective date for an increase will typically be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (o)(1). However, if a complete claim or intent to file a claim is received within one year of the date as of which it is factually ascertainable that an increase in disability has occurred, then the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability occurred. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (o)(2). Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). In this case, an October 2019 rating decision granted service connection for GERD with gastric ulcers with a noncompensable rating effective April 4, 2013, and a 10 percent rating from August 14, 2019. In October 2019, the Veteran filed a VA Form 10182 Notice of Disagreement appealing the assigned effective date of the 10 percent rating. An April 2020 rating decision found a clear and unmistakable error and assigned an effective date of December 2, 2013, for the grant of service connection for GERD with gastric ulcers. Therefore, the current appeal review period is from the effective date of the grant of service connection, which is December 2, 2013. The evidentiary windows include the evidence of record at the time of the October 2019 AOJ rating decision on appeal, as well as any evidence submitted by the Veteran or his representative at the August 2022 hearing or within 90 days following the hearing (i.e., December 2, 2013, through October 2, 2019, and from August 11, 2022, through November 9, 2022). Under 38 C.F.R. § 4.114, Diagnostic Code 7346, a 30 percent rating requires persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is assigned for two or more of the symptoms for the 30 percent evaluation of less severity. A June 2015 nursing telephone encounter note reflects reports of chronic stabbing lower abdominal pain and a concern for gastritis, gastroenteritis, peptic ulcer disease, and/or reflux esophagitis. An August 2015 VA intestinal conditions examination report does not reflect any diagnosed gastrointestinal conditions. An August 2015 VA sinusitis examination report indicates the Veteran reported experiencing dysphagia. An October 2015 VA treatment record notes diarrhea and black stool with occasional sharp pain in abdomen from back to front without dysphagia or rectal bleeding. The clinician indicated that he denied dysphagia and rectal bleeding. In April 2016, the Veteran reported ulcers 'up and down' his throat and acid reflux. April 2016 VA treatment records reflect a diagnosis of gastric ulcer. April 2016 VA treatment records also indicate that the Veteran reported having a meal of chicken and fish and afterwards feeling like a fishbone was stuck in his throat. He reported he had dysphagia and odynophagia with each swallow but reported no history of dysphagia. The VA clinician noted that 'there was gastritis and duodenitis with gastric ulcer; biopsies were taken and sent for histopathology and H pylori testing.' The clinician indicated that the Veteran most likely had some injury to his throat with swallowing that resulted in persistent throat irritation and dysphagia and may have a "contributing component" of acid reflux. An April 2016 VA treatment record indicates the Veteran was prescribed Omeprazole, an acid blocker. A June 2016 VA treatment record notes a history of H. Pylori and GERD. The Veteran reported continuous passing of gas with a lot of abdominal discomfort. However, he denied abdominal pain, swelling, or distention; constipation or diarrhea; and blood in stool. A July 2016 VA treatment record notes a prescription for Famotidine and a prior prescription for Omeprazole. A November 2016 VA treatment record notes H. Pylori six months ago and now 'not much reflux symptoms.' A subsequent November 2016 VA treatment record indicates he was negative for acid reflux, pyrosis, dyspepsia, dysphagia, or odynophagia. The Veteran reported regular bowel habits but trouble emptying his rectum with frequent stooling. August 2017 VA treatment records indicate the Veteran denied GERD. A March 2019 VA treatment record also indicates the Veteran denied reflux or GERD. An August 2019 VA esophageal conditions examination notes a diagnosis of GERD and gastric ulcer. The examiner indicated the Veteran did not have esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus. However, the examiner noted associated persistently recurrent epigastric distress, reflux, and regurgitation. During his August 2022 Board hearing, the Veteran reported severe incapacitating exacerbations 'constantly' or four to five times a month. He indicated his symptoms are 'constant bubbling in my stomach.' He did not indicate that he has any difficulty with swallowing or regurgitation but reported acid reflux. After a review of the evidentiary record, the evidence of record persuasively weighs against entitlement to an earlier effective date for the grant of a 10 percent rating for service connected GERD with gastric ulcers. A 10 percent rating is warranted for two or more symptoms of the 30 percent evaluation of less severity, which includes persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation. 38 C.F.R. § 4.114, Diagnostic Code 7346. In this case, the evidence prior to August 14, 2019, does not credibly reflect two or more symptoms of dysphagia, pyrosis, and regurgitation related to the Veteran's GERD with gastric ulcers of less severity than that required by the 30 percent rating criteria. Prior to August 14, 2019, the record reflects only occasional reports of abdominal pain or acid reflux; it does not reflect 'persistently recurrent' (which contemplates a frequency greater than 'occasional') epigastric distress that was also accompanied by dysphagia, pyrosis or regurgitation even to a lesser degree. The Board acknowledges that an Augst 2015 VA sinusitis examination report and an April 2016 VA treatment record both indicate the Veteran experienced dysphagia; however, the record in large part reflects that the Veteran generally denied dysphagia. Indeed, even in the April 2016 VA treatment record, the Veteran denied a history of dysphagia. VA treatment records both prior to the August 2015 VA examination and after the April 2016 VA treatment record indicate he denied dysphagia. See May 2005 VA treatment record; see also November 2016 VA treatment record. Therefore, the Board finds entitlement to a 10 percent rating did not arise until August 14, 2019. As noted above, where an award is based on an original claim, the effective date is generally the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In this case, the later of the date of claim and date entitlement arose is August 14, 2019. Therefore, there is no basis to award an earlier effective date for the grant of a 10 percent rating for GERD with gastric ulcers. The evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable. (Continued on the next page) ? Entitlement to an effective date prior to August 14, 2019, for the grant of a 10 percent rating for GERD with gastric ulcers is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Aoughsten, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.